Developer License Terms

Development Agreement (NO DISTRIBUTION)

This Document was last updated February 10, 2014

READ THIS AGREEMENT CAREFULLY.

BY CLICKING ON THE “SIGN UP” BUTTON OR INSTALLING OR USING ALL OR ANY PORTION OF THE PRODUCTS, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT CLICK ON THE “SIGN UP” BUTTON. YOU WILL NOT BE GIVEN ACCESS TO THE PRODUCTS UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT.

IF YOU ARE USING THE PRODUCTS AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH AEROFS FOR USE OF THE PRODUCTS TO DEVELOP APPLICATIONS, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.

This Development Agreement (No Distribution) (“Agreement”) is entered into by and between Air Computing, Inc., located at 635 High Street, Palo Alto, CA 94301 (“AeroFS”) and the developer (individual or entity) (“Developer”) that has downloaded or otherwise procured the AeroFS Appliance (Developer Version) and AeroFS Developer API made available by AeroFS on the AeroFS developer portal (“Product(s)”) only for the limited development purposes described below.

1. License Grant

(a) Subject to the terms and conditions of this Agreement, AeroFS grants Developer a limited, non-exclusive, non-transferable, non-sublicensable license during the term of this Agreement to use the Products internally by no more than the number of Registered Users for whom AeroFS has provided license keys solely for the purpose of developing and testing software applications which may interoperate with the Products (“Applications”). “Registered User” means an individual end user of the Products whom Developer provisions with an account based on a unique e-mail address.Developer acknowledges that this Agreement is for limited development purposes only and that no right is granted under this Agreement to use the Products in production or to distribute or market Applications (or any part of any Product as incorporated in any Application), which rights may be granted if at all under separate written agreement from AeroFS. There is no fee for use of the Products in accordance with this Agreement.

(b) As a condition on the license rights granted in (a), Developer shall not (i) copy the Products or any portion thereof, except for one permitted backup copy; (ii) rent, sublicense or transfer any copies of the Products, or portions thereof, to a third party or allow a third party to use the Products; (iii) modify, decompile, disassemble or reverse engineer the Products or attempt to use or access any non-public APIs of the Products; (iv) use any portion of the Products to create a competitive service, product or technology; (v) export the Products from the United States; (vi) make the functionality of the Products available to the public in any manner; (vii) use the Products in a production environment; or (viii) sublicense, distribute to any third party or otherwise commercially exploit in any manner any Applications developed using the Products.

(c) Developers are free to use their Applications for any internal purpose, but Developers who wish to publish Applications should contact AeroFS at api@aerofs.com to discuss further.

2. Term and Termination.

Upon termination of this Agreement, Developer must cease all use of the Products and return or destroy all copies, including the backup copy, if made. Either party may terminate this Agreement at any time for any or no reason upon written notice to the other party. Nothing herein obligates either party to enter into any further agreement with the other party. Sections 3 (Ownership and Feedback), 5 (Confidential Information), 6 (No Warranty), 7 (Limitation of Liability) and 9 (General) shall survive any expiration or termination of this Agreement.

3. Ownership and Feedback.

Except for the limited license rights expressly provided herein, AeroFS and its suppliers have and will retain all rights, title and interest in and to the Products (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights). AeroFS acknowledges that it is obtaining only a limited license right to the Products and that irrespective of any use of the words “purchase,” “sale” or like terms hereunder no ownership rights are being conveyed to Developer under this Agreement or otherwise. All copies, improvements, updates, modifications or enhancements of the Products (including any modifications to sample files) shall remain the property of AeroFS. If Developer elects to provide any suggestions, comments, improvements, ideas or other feedback to AeroFS related to the Products (collectively, “Feedback”), Developer agrees that AeroFS will be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as AeroFS sees fit, entirely without obligation or restriction of any kind. All rights not granted by AeroFS are reserved.

4. No Maintenance.

AeroFS is not obligated to provide any support or maintenance for the Products during the term of this Agreement. From time to time, AeroFS may make changes to the Products which may not be compatible with Applications developed using previous versions. Developer is responsible for ensuring that its Applications continue to be compatible with new versions of the Products.

5. Confidential Information.

In the course of their relationship, the parties may disclose to each other information identified at the time of disclosure as confidential (“Confidential Information”), which may include information concerning their respective businesses and technology. The Products (including the performance characteristics of the Products) and all related documentation are Confidential Information of AeroFS. All Confidential Information shall remain the property of the disclosing party, and the receiving party shall have no interest in or rights in such except as expressly set forth in this Agreement. Except as authorized herein, each party agrees to maintain all Confidential Information of the other party in confidence, to not use or disclose any Confidential Information and to take all reasonable precautions to prevent any unauthorized disclosure of such information. These restrictions on disclosure will not apply to any information which (i) becomes generally known or publicly available through no act or failure to act on the part of the receiving party; (ii) is furnished to others by the disclosing party without restriction on disclosure; (iii) is known by the receiving party at the time of receiving such information as evidenced by its records; or (iv) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure.

6. No Warranty.

THE PRODUCTS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. DEVELOPER MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

7. Limitation of Liability.

IN NO EVENT SHALL AEROFS BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AEROFS’ ENTIRE LIABILITY TO DEVELOPER UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT ACTUALLY PAID BY DEVELOPER TO AEROFS UNDER THIS AGREEMENT OR (II) $100. IN NO EVENT SHALL AEROFS BE LIABLE FOR DEVELOPER’S APPLICATIONS, INCLUDING, BUT NOT LIMITED TO, THE SECURITY OF APPLICATIONS OR THE TRANSMISSION OF ANY DATA FROM APPLICATIONS TO THE PRODUCTS.

8. Government End-Users.

The Products are commercial computer software. If the user or licensee of the Products is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.

9. General.

This Agreement shall be governed by and construed under the laws of the State of California. Any suit or proceeding arising out of or relating to this Agreement shall be commenced exclusively in the state or federal courts in Santa Clara County, California, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. Developer acknowledges that AeroFS would not make available the Products except on all the terms included herein, and accordingly AeroFS may seek injunctive relief upon any breach. The parties are independent contractors and no employment, agency, or joint venture is created hereunder. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. Notwithstanding the foregoing, AeroFS may notify Developer by e-mail or posting notice to the AeroFS developer portal. This Agreement may not be assigned by Developer or amended without the prior written consent of both parties. Any purported assignment or amendment in violation of the foregoing shall be void. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written.